Untitled Texas Attorney General Opinion ( 1999 )

OFFICE
OFTHEATTORNEY
GENERAL.STATE
OFTEXAS
JOHN CORNYN
November lo,1999
The Honorable Jose R. Rodriguez Opinion No. JC-0141
El Paso County Attorney
500 East San Antonio, Room 203 Re: Whether, following the termination of a tax
El Paso, Texas 79901 increment financing reinvestment zone, a city
may use unexpended monies in the tax increment
fund to construct a public work or improvement
outside boundaries of the former reinvestment
zone (RQ-0089-JC)
Dear Mr. Rodriguez:
You ask whether, following the termination of a tax increment financing reinvestment zone
created under chapter 3 11 of the Tax Code, a city may use unexpended monies in the tax increment
fund to construct a public work or improvement outside the boundaries of the former reinvestment
zone. We conclude that a city is not authorized under chapter 3 11 to undertake or complete a
reinvestment zone project in a manner that is not consistent with the reinvestment zone board of
directors’ project and financing plans, which must provide for projects within the zone. Therefore,
as a general matter, a city may not expend tax increment fund money after termination of a
reinvestment zone to build an improvement outside the zone. However, the city may do so if, prior
to the zone’s termination, the reinvestment zone board of directors agreed to dedicate revenue from
the tax increment fund to replace areas of public assembly, and if construction of the improvement
is acost ofreplacing an areaofpublic assembly under section 311.010(b). SeeT~x. TAxCODEANN.
§311.010(b),asaddedby, ActofMay24,1989,71stLeg.,R.S.,ch.1137,~22,sec.311.010,1989
Tex. Gen. Laws 4683,469O.
You provide the following background information. The City of El Paso created a tax
increment financing reinvestment zone under chapter 3 11 by ordinance in 1982. See Letter from
Honorable Jose R. Rodriguez, El Paso County Attorney, to Honorable John Comyn, Attorney
General, at 2 (July 20,1999) (on tile with Opinion Committee) [hereinafter “Request Letter”]. The
board of directors of the zone adopted its first project plan in 1987, which was subsequently
amended on several occasions. See id. The reinvestment zone’s board approved a project that
consisted of a series of monuments. See id. You state that in 1992, the city commissioned two
monuments from an artist to be erected within the boundaries of the reinvestment zone. See id.
Work has been completed on the first of the two monuments. See id. at 3. The city has not yet
selected a site for the second monument. See id. The city and the other taxing units terminated the
reinvestment zone in 1998. See id. at 5. The termination agreement charged the city with defeasing
The Honorable Jose R. Rodriguez - Page 2 (JC-0141)
the outstanding bonds and completing all or parts of identified projects, including the monument.
See id. The termination agreement included the following provision:
1. The City of El Paso upon termination of the District will have
sole responsibility for completing all or parts of the projects
above-identified and to do so shall have sole use of funds
remaining on hand for such purpose and shall have any and all
rights with respect to such funds that previously could have been
exercised by the City of El Paso and/or the parties acting
individually or through the Board of Directors of the Tax
Increment Finance District.
Id.
The city would now like to use unexpended monies in the tax increment fund to build the
second monument outside the boundaries of the former reinvestment zone. See id. You ask the
following questions about the city’s authority to undertake the second monument:
1. May a public improvement project approved for location within
a [reinvestment zone] during the existence ofthe [zone] be placed
at a location outside the [zone’s] geographic boundary following
termination of such [zone]?
2. May the costs of a project so situated outside a former
[reinvestment zone’s] boundary be considered “project costs” as
that term is defined in [section 3 11.002( 1) of the Tax Code]?
Id.
Chapter 3 11 establishes a tax increment financing scheme in which%e existing tax revenues
of each ‘taxing unit’ are frozen; the tax increment financing bonds are sold; the improvements are
constructed; the ‘blighted area’ is revitalized; property values soar and ad valorem tax revenues
increase. The increased tax revenues over and above the tax increment base are then used to retire
the tax increment financing obligations.” El Paso Community ColZege Dist. v. City of El Paso, 698
S.W.2d 248,250 (Tex. App.-Austin 1985), rev’d on other grounds, 729 S.W.2d 296 (Tex. 1986).
Chapter 311 is the codification of former article 1066e of the Revised Civil Statutes,’ which was
‘See Act of May 1, 1987, 70th Leg., RX, ch. 191, $5 1 (adding title 3 to Tax Code), 12 (repealing former
article 1066e), 13 (“no substantive change. is intended by this Act”), 1987 Tex. Gen. Laws 1410,1466.
The Honorable Jose R. Rodriguez - Page 3 (JC-0141)
enacted to implement article VIII, section l-g(b) of the Texas Constitution.* Section l-g(b) was
added to the Texas Constitution in 198 l3 to provide an exception to the article VIII, section 1 “equal
and uniform” taxation requirement, see Tex. Att’y Gen. Op. No. MW-337 (1981) at 5 (concluding
that 1979 tax increment financing statute violated article VIII, section 1 because it “caus[ed] an
unequal distribution of the ad valorem tax burden”), by expressly authorizing the legislature to
permit a city to undertake tax increment financing by general law.
After a municipality has adopted an ordinance creating a reinvestment zone, see TEX. TAX
CODE ANN. $5 3 11.003-.006 (Vernon 1992): and the participating taxing units have appointed the
zone’s board of directors, see id. $3 11.009, the board is charged with adopting a “project plan” and
a “financing plan,” both of which must be approved by the city’s governing board by ordinance, id.
9 3 11 .Ol l(a), (d). Section 311 ,011 states that the project plan must include, among other things, a
map showing proposed improvements to and proposed uses of the real property in the zone. See id.
5 3 11 ,011 (b)( 1). The financing plan must include, among other things, a detailed list describing
estimated project costs of the zone, see id. 5 311.01 l(c)(l), and “a statement listing the kind,
number, and location of all proposed public works or public improvements in the zone,” id.
5 3 11 .Ol l(c)(2). The term “project costs” is defined in chapter 3 11 to mean “expenditures made or
estimated to be made and monetary obligations incurred or estimated to be incurred by the
municipality establishing a reinvestment zone that are listed in the project plan as costs of public
works or public improvements in the zone, plus other costs incidental to those expenditures and
obligations.” Id. 5 3 11.002( 1); see also id. 5 3 11.002(l)(A)-(K) (listing project costs).
Both the city and the zone’s board of directors are authorized to enter into agreements to
implementprojectplans. See id. $5 311.008, .010(b) (V emon 1992 & Supp. 1999). In addition, the
city creating the reinvestment zone may issue tax increment bonds or notes to finance improvements.
See id. 5 311.015(a) (Vernon 1992). The proceeds ofthese bonds are to beused “to pay project costs
for the reinvestment zone on behalf of which the bonds or notes were issued or to satisfy claims of
the holders of the bonds or notes.” Id.; see also id. 5 3 11.015(k) (municipality may not issue bonds
in an amount that exceeds the total cost of implementing the project plan for the reinvestment zone).
*See Act ofAug. 10, 1981,67th Leg., 1st C.S., ch. 4,§ 4,198l Tex. Gen. Laws45,52 (enacting former article
1066e to take effect upon adoption of article VIII, section l-g of the Texas Constitution).
‘See Tex. S.J. Res. 8,67thLeg., 1stC.S.. 1981 Tex. Gen.Laws295 (p IOp o&g adoption of article VIII, section
l-g of the Texas Constitution).
“Provisions of chapter 311 of the Tax Code were amended by several bills enacted by the 76th Texas
Legislature. See Act ofMay 29,1999,76th Leg., R.S., ch. 983, $5 l-8,14,1999 Tex. Sess. Law Serv. 3763 (amending
sections311.004,.009,.010,.011,.012,.0125,.013,and.018oftheTaxCode);ActofMay29, 1999,76thLeg.,R.S.,
ch. 1521.5 1,1999Tex. Sess. Law Serv. 5249 ( amendiig section 3 11.008 of the Tax Code). Because the reinvestment
zone at issue was terminated in 1998, we refer to provisions of chapter 3 11 as they existed prior to their amendment in
1999, unless otherwise noted.
The Honorable Jose R. Rodriguez - Page 4 (X-0141)
Subsection (e) of section 3 11 ,011 provides that a project plan may be amended according to
the following procedures:
The board of directors of the zone at any time may adopt an
amendment to the project plan consistent with the requirements and
limitations of this chapter. The amendment takes effect on approval
by the governing body of the municipality. That approval must be by
ordinance. If an amendment reduces or increases the geographic area
of the zone, increases the amount of bonded indebtedness to be
incurred, increases or decreases the percentage of a tax increment to
be contributed by a taxing unit, increases the total estimated project
costs, or designates additional property in the zone to be acquired by
the municipality, the approval must be by ordinance adopted after a
public hearing that satisfies the procedural requirements of Sections
311.003(c) and (d).
Id. 5 3 11 .Ol l(e). Section 3 11 ,011 does not provide for the amendment of the financing plan.
As is apparent from section 311.011, chapter 311 generally contemplates that the
reinvestment zone tax increment fund will finance “projects” - public works and improvements
specified in the project and financing plans within the boundaries of the zone. However, section
3 11 ,010 authorizes limited expenditure of tax increment fund monies to finance activities outside
the zone. Prior to June 18, 1999, when House Bill 2684 became effective, section 311.010
authorized the board of directors of a reinvestment zone to enter into agreements to implement
the project plan. It provided that “[a]n agreement may dedicate revenue from the tax increment
fund to pay the costs of replacement housing or areas of public assembly in or out of the zone.” Id.
~311.010(b),asaddedby,ActofMay24,1989,71stLeg.,R.S.,ch.1137,~22,sec.311.010,1989
Tex. Gen. Laws 4683, 4690. As of June 18, 1999, section 311.010(b) authorizes the board of
directors or the city to enter into agreements to implement the project plan: “An agreement may
during the term of the agreement dedicate, pledge, or otherwise provide for the use of revenue in the
tax increment fund to pay any project costs that benefit the reinvestment zone. . An agreement
may dedicate revenue from the tax increment fund to pay the costs of providing affordable housing
or areas of public assembly in or out of the zone.” TEX. TAX CODE 5 3 11.010(b), as amended by,
H.B. 2684, Act of May 29, 1999,76th Leg., R.S., ch. 983, § 3, sec. 311.010, 1999 Tex. Sess. Law
Serv. 3763,3764. The 1999 amendments, which were not effective during the lifetime of the City
of El Paso reinvestment zone, do not apply.
Your questions involve use of a tax increment fund to complete projects after termination of
the reinvestment zone. Taxing units participating in a reinvestment zone deposit increased tax
revenues over and above the tax increment base into the tax increment fund. See TEX. TAX CODE
ANN. 9 311.013 (Vernon 1992). Expenditures from a tax increment fund are governed by section
The Honorable Jose R. Rodriguez - Page 5 (X-0141)
311.014(b), which provides that money may be disbursed from the fund only to satisfy claims of
holders of tax increment financing bonds issued for the zone, to pay project costs for the zone, “or
to make payments pursuant to an agreement made under Section 3 11 .Ol O(b) dedicating revenue from
the tax increment fund.” Id. 3 3 11.014(b). Subsection (d) of section 3 11.014 provides that “[alfter
all project costs and all tax increment bonds or notes issued for a reinvestment zone have been paid,
and subject to any agreement with the bondholders, any money remaining in the tax increment fund
shall be paid to the municipality and other taxing units levying taxes on the property in the zone”
on a pro rata basis. Id. 5 311.014(d). Neither subsection (b) nor (d) expressly provides for
expenditure of monies to complete projects after termination of a reinvestment zone.
Nor does the provision governing the termination of a reinvestment zone, section 3 11.017,
expressly provide for expenditures from the tax increment fund to complete projects. It provides that
a reinvestment zone terminates on the earlier of(i) the termination date designated in the ordinance
creating the zone; (ii) an earlier termination date designated by an ordinance adopted subsequent to
the ordinance creating the zone; or (iii) the date on which all project costs, tax increment bonds, and
interest on those bonds have been paid in full. See id. 5 311.017(a). In addition, it provides that a
city may terminate a reinvestment zone prior to payment of the tax increment bonds in full if it takes
certain actions. See id. 5 311.017@) (“The tax increment pledged to the payment of bonds and
interest on the bonds may be discharged and the reinvestment zone may be terminated if the
municipality . . deposits [in escrow] an amount that will be sufficient to pay the principal of,
premium, if any, and interest on all bonds issued on behalf of the reinvestment zone.“). It appears
that the reinvestment zone’s board of directors ceases to exist as of the zone’s termination. See id.
4 311.010(c) (“after termination of the zone [an agreement entered into by board regarding
restricting use of property in zone] is treated as if it had been adopted by the governing body of the
municipality”).
We turn to your specific questions. First, you ask whether “a public improvement project
approved for location within a [reinvestment zone may] during the existence of the [zone] be placed
at a location outside the [zone’s] geographic boundary following termination of such [zone]” and,
second, whether “the costs of a project so situated outside a former [reinvestment zone’s] boundary
[may] be considered ‘project costs’ as that term is defined in [section 3 11.002(l) ofthe Tax Code].”
Request Letter at 5.
Although chapter 3 11 is silent with respect to expenditure oftax increment timd monies after
a zone’s termination, we believe a city has authority to expend such monies for limited purposes.
Under section 311.014(b), money may be disbursed from the tax increment fund to satisfy
obligations authorized by chapter 3 11 -to pay the bondholders, project costs, and agreements under
section 311.010(b) dedicating revenue from the tax increment fund. See TEX. TAX CODE ANN.
5 3 11.014(b). We construe section 3 11.014(b) to authorize a city to use unexpended tax increment
fund monies to pay for reinvestment-zone obligations undertaken during the lifetime of the
reinvestment zone after its termination. We do not construe it, however, to authorize a city to
The Honorable Jose R. Rodriguez - Page 6 (JC-0141)
undertake new projects or agreements after termination of the zone because such actions are
expressly precluded by chapter 3 11
Under chapter 311, it is the reinvestment zone board of directors rather than the city that is
charged with establishing the scope of the work to be done in the zone. See id. 4 3 11 ,011 (board
of directors adopts project and financing plans); see also id. 5 311.010(b), as added by, Act of
May 24, 1989, 71st Leg., R.S., ch. 1137, 5 22, sec. 311.010, 1989 Tex. Gen. Laws 4683, 4690
(reinvestment zone board of directors enters into section 3 11.010(b) agreement). Section 3 11 .Ol 1
charges the board of directors of a reinvestment zone to prepare a project plan and a finance plan
listing, among other things, the kind, number, and location of all proposed public works or
improvements “in the zone.” TEX. TAX CODE ANN. 5 3 11 .Ol l(a), (c)(2) Vernon 1992). The plans
must be approved by the city. See id. § 3 11 .Ol l(d). The board of directors may amend the project
plan with the approval of the city. See id. $3 11 .Ol l(e). Section 311 .Oll clearly contemplates that
public works and improvements will be made in the zone. Additionally, the location ofpublic works
is clearly the province of the reinvestment zone’s board of directors and is established and governed
by the project and financing plans. The city has no authority to amend project or financing plans by
changing the location of projects on its own initiative either before or after the termination of a
reinvestment zone. Nor does chapter 3 11 authorize the taxing units participating in the zone to
confer on the city by contract the power to amend project or financing plans or to otherwise
undertake new projects or agreements on behalf of the zone after the zone’s termination.
Furthermore, use of unexpended monies in the tax increment fund for new projects or
agreements after the zone’s termination would be contrary to the express language of subsection(d)
of section 311.014 requiring that, after payment of authorized project costs and bonds and subject
to any agreement with the bondholders, any money remaining in the tax increment fund will be
returned to the taxing units participating in the zone on a pro rata basis. See id. 5 311.014(d).
Chapter 3 11 does not authorize the taxing units to agree to renounce the retimds to which they are
entitled under section 3 11.014(d).
Accordingly, in answer to your first question, after the termination of a reinvestment zone,
a city is not authorized to undertake or complete a public work or improvement in a manner
inconsistent with the project and financing plans created by the reinvestment zone board and
approved by the city prior to the termination of the zone. Because project and financing plans must
provide for projects located inside the zone, unexpended monies in the tax increment fund may not
be used to build projects located outside the zone after the zone’s termination. In answer to your
second question, project costs are costs of the public works and improvements in the zone listed in
the project plan, i.e., projects. See id. 5 311.002(l) (“project costs” are expenditures made or
obligations “incurred by the municipality establishing a reinvestment zone that are listed in the
project plan aa costs of public works or public improvements in the zone”). Costs of a project not
provided in or not consistent with the project plan, such as an improvement made outside the zone,
are not “project costs” within the meaning of section 3 11.002( 1).
The Honorable Jose R. Rodriguez - Page 7 (JC-0141)
We note that as of 1998 when the reinvestment zone was terminated, section 3 11.010(b)
authorized the board of directors of a reinvestment zone to agree to “dedicate revenue from the tax
increment fund to pay the costs of replacing housing or areas of public assembly in or out of the
zone.” Id. 3 3ll.OlO(b),asaddedby,ActofMay24, 1989,7lst Leg.,R.S.,ch. 1137, 422,sec.
3 11 ,010, 1989 Tex. Gen. Laws 4683,469O. This provision authorized the board of directors to pay
the cost of replacing housing or areas of public assembly displaced by improvements in the zone,
even if the replacement housing or areas of public assembly are constructed outside the zone. See
id. If the board of directors did in fact enter into such an agreement, and if construction of the
monument is a cost ofreplacing an area ofpublic assembly, then we believe that the city may expend
monies remaining in the tax increment fund for this purpose. The determination whether the board
of directors actually entered into a section 311.010(b) agreement and whether construction of the
monument is a cost ofreplacing an area of public assembly involves questions of fact and is beyond
the purview of an attorney general opinion.s
In sum, after the termination of a reinvestment zone, a city is not authorized, as a general
matter, to use unexpended money in the tax increment fund to build an improvement outside the
reinvestment zone. The city may do so only if, prior to the zone’s termination, the reinvestment zone
board of directors agreed to dedicate revenue from the tax increment fund to replace areas of public
assembly, and if construction of the improvement is a cost of replacing an area of public assembly
under section 311.010(b) of the Tax Code, as added by, Act of May 24, 1989, 71st Leg., R.S., ch.
1137, 5 22, sec. 311.010, 1989 Tex. Gen. Laws 4683, 4690. Any money remaining in the tax
increment fund after the termination of the zone not needed to defease the bonds and pay other
projects or agreements undertaken during the existence of the zone must be returned to the taxing
units on a pro rata basis. See TEX. TAX CODE ANN. 5 311.014(d) (Vernon 1992).
‘See, e.g., Tex. Att’y Gen. Op. Nos. K-0020 (1999) at 2 (investigation and resolution of fact questions cannot
be done in opinion process); DM-383 (1996) at 2 (questions of fact are inappropriate for opinion process); DM-98
(1992) at 3 (questions of fact cammt be resolved in opinion process); H-56 (1973) at 3 (improper for Attorney General
to pass judgment on matter that would be question for jury determination); M-l 87 (1968) at 3 (Attorney General cannot
make factual fmdings).
The Honorable Josh R. Rodriguez - Page 8 (JC-0141)
SUMMARY
Under chapter 3 11 of the Tax Code, a city is not authorized to
undertake or complete a reinvestment zone project in a manner that
is not consistent with the reinvestment zone board of directors’
project and financing plans, which must provide for projects within
the zone. Therefore, as a general matter, a city may not use
unexpended tax increment fund money after termination of a
reinvestment zone to build an improvement outside the zone. The
city may do so only if, prior to the zone’s termination, the
reinvestment zone board of directors agreed to dedicate revenue from
the tax increment fund to replace areas of public assembly, and if
construction of the improvement is a cost of replacing an area of
public assembly under section 3 11 .O1O(b) of the Tax Code, as added
by, Act of May 24, 1989, 71st Leg., R.S., ch. 1137, 5 22, sec.
311.010,1989 Tex. Gen. Laws 4683,469O.
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KBNT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General - Opinion Committee